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Title 50Chapter IISubchapter CPart 219 → Subpart H


Title 50: Wildlife and Fisheries
PART 219—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS


Subpart H—Taking Marine Mammals Incidental to Southeast Fisheries Science Center Fisheries Research in the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea


Contents
§219.71   Specified activity and specified geographical region.
§219.72   Effective dates.
§219.73   Permissible methods of taking.
§219.74   Prohibitions.
§219.75   Mitigation requirements.
§219.76   Requirements for monitoring and reporting.
§219.77   Letters of Authorization.
§219.78   Renewals and modifications of Letters of Authorization.
§§219.79-219.80   [Reserved]

Source: 85 FR 27079, May 6, 2010, unless otherwise noted.

Effective Date Note: At 85 FR 27079, May 6, 2010, subpart H was added, effective June 5, 2020, through June 5, 2025.

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§219.71   Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the National Marine Fisheries Service's (NMFS) Southeast Fisheries Science Center (SEFSC) and those persons it authorizes or funds to conduct fishery-independent research surveys on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to SEFSC and partner research survey program operations. Hereafter, “SEFSC” refers to both the SEFSC and all designated partners.

(b) The taking of marine mammals by the SEFSC and partners may be authorized in a 5-year Letter of Authorization (LOA) only if it occurs during fishery research surveys in the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea and their associated estuaries.

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§219.72   Effective dates.

This subpart is effective from June 5, 2020, through June 5, 2025.

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§219.73   Permissible methods of taking.

Under an LOA issued pursuant to §§216.106 of this chapter and 219.77, the Holder of the LOA (hereinafter “SEFSC”) may incidentally, but not intentionally, take marine mammals within the areas described in §219.71 by Level A harassment, serious injury, or mortality associated with fisheries research gear including trawls, gillnets, and hook and line, and Level B harassment associated with use of active acoustic systems provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the relevant LOA.

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§219.74   Prohibitions.

Notwithstanding takings contemplated in §219.73 and authorized by an LOA issued under §§216.106 of this chapter and 219.77, no person in connection with the activities described in §219.71 may:

(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§216.106 of this chapter and 219.77;

(b) Take any marine mammal species or stock not specified in the LOA;

(c) Take any marine mammal in any manner other than as specified in the LOA; and

(d) Take a marine mammal specified in an LOA in numbers exceeding those authorized.

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§219.75   Mitigation requirements.

When conducting the activities identified in §219.71, the mitigation measures contained in any LOA issued under §§216.106 of this chapter and 219.77 must be implemented. These mitigation measures must include but are not limited to:

(a) General conditions. (1) SEFSC must take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration's (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant event-contingent decision-making processes, are clearly understood and agreed upon;

(2) SEFSC must coordinate and conduct briefings at the outset of each survey and as necessary between ship's crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures;

(3) SEFSC must coordinate, on an annual basis, with all partners to ensure that marine mammal-related requirements, procedures, and decision-making processes are understood and properly implemented.

(4) SEFSC must establish and maintain cooperating partner working group(s) to identify circumstances of a take should it occur and any action necessary to avoid future take.

(i) Working groups must be established if a partner takes more than one marine mammal within 5 years to identify circumstances of marine mammal take and necessary action to avoid future take. Each working group must meet at least once annually.

(ii) Each working group must consist of at least one SEFSC representative knowledgeable of the mitigation, monitoring and reporting requirements contained within these regulations, one or more research institution or SEFSC representative(s) (preferably researcher(s) aboard vessel when take or risk of take occurred), one or more staff from NMFS Southeast Regional Office Protected Resources Division, and one or more staff from NMFS Office of Protected Resources.

(5) When deploying any type of sampling gear at sea, SEFSC must at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment.

(6) SEFSC must implement handling and/or disentanglement protocols that must be provided to survey personnel. During fishery surveys where there is a potential for take, at least two persons aboard SEFSC ships and one person aboard smaller vessels, including vessels operated by partners where no SEFSC staff are present, must be trained in marine mammal handling, release, and disentanglement procedures.

(7) For research surveys using gear that has the potential to hook or entangle a marine mammal in open-ocean waters (as defined from the coastline seaward), the SEFSC must implement move-on rule mitigation protocol upon observation of any marine mammal other than dolphins and porpoises attracted to the vessel (see specific gear types below for marine mammal monitoring details). Specifically, if one or more marine mammals (other than dolphins and porpoises) are observed near the sampling area and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, SEFSC must either remain onsite or move on to another sampling location. If remaining onsite, the set must be delayed until the animal(s) depart or appear to no longer be at risk of interacting with the vessel or gear. At such time, the SEFSC may deploy gear. The SEFSC must use best professional judgment, in accordance with this paragraph, in making decisions related to deploying gear.

(8) Vessels Operation—While transiting in areas subjected to the North Atlantic right whale ship strike rule, all SEFSC-affiliated research vessels (NOAA vessels, NOAA chartered vessels, and research partner vessels) must abide by the required speed restrictions and sighting alert protocols. All NOAA research vessels operating in North Atlantic right whale habitat participate in the Right Whale Early Warning System.

(9) The SEFSC must avoid baiting the waters (i.e, chumming) during all surveys.

(b) Trawl survey mitigation. In addition to the general conditions provided in §219.75(a), the following measures must be implemented during trawl surveys:

(1) SEFSC must conduct fishing operations as soon as practicable upon arrival at the sampling station and, if practicable, prior to other environmental sampling;

(2) The SEFSC must limit tow times to 30 minutes (except for sea turtle research trawls);

(3) The SEFSC must, during haul back, open cod end close to deck/sorting table to avoid damage to animals that may be caught in gear and empty gear as quickly as possible after retrieval haul back;

(4) The SEFSC must delay gear deployment if any marine mammals are believed to be at risk of interaction;

(5) The SEFSC must retrieve gear immediately if any marine mammals are believed to be entangled or at risk of entanglement;

(6) Dedicated marine mammal observations must occur at least 15 minutes prior to the beginning of net deployment when trawling occurs in waters less than 200 meters in depth. If trawling occurs in waters deeper than 200 m, dedicated marine mammal observations must occur at least 30 minutes prior to net deployment. This watch may include approach to the sampling station within 0.5 nm. Marine mammal watches should be conducted by systematically scanning the surrounding waters and marsh edge (if visible) 360 degrees around the vessel. If dolphin(s) are sighted and believed to be at-risk of interaction (e.g., moving in the direction of the vessel/gear; moms/calves close to the gear; etc.), gear deployment should be delayed until the animal(s) are no longer at risk or have left the area on their own. If species other than dolphins are sighted, trawling must not be initiated and the marine mammal(s) must be allowed to either leave or pass through the area safely before trawling is initiated. All marine mammal sightings must be logged and reported per §219.76 of this subpart.

(7) The SEFSC must retrieve gear immediately if marine mammals are believed to be captured/entangled in a net or associated gear (e.g., lazy line) and follow disentanglement protocols;

(8) The SEFSC must minimize “pocketing” in areas of trawl nets where dolphin depredation evidence is commonly observed;

(9) When conducting research under an ESA section 10(a)(1)(A) scientific research permit issued by NMFS, all marine mammal mitigation and monitoring protocol contained within that permit must be implemented;

(10) SEFSC must implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and must carefully empty the trawl as quickly as possible upon retrieval. Trawl nets must be cleaned prior to deployment; and

(11) The SEFSC must continue investigation into gear modifications (e.g., stiffening lazy lines) and the effectiveness of gear modification at avoiding entanglement, as funding allows.

(c) Seine net and gillnet survey mitigation. In addition to the general conditions provided in paragraph (a) of this section, the following measures must be implemented during seine and gillnet surveys:

(1) Conduct gillnet and trammel net research activities during daylight hours only.

(2) Limit soak times to the least amount of time required to conduct sampling;

(3) Conduct dedicated marine mammal observation monitoring beginning 15 minutes prior to deploying the gear and continue through deployment and haulback;

(4) Hand-check the net every 30 minutes if soak times are longer than 30 minutes or immediately if disturbance is observed;

(5) Reduce net slack and excess floating and trailing lines;

(6) Repair damaged nets prior to deploying;

(7) Delay setting net if a marine mammal is deemed to be at-risk of entanglement;

(8) Pull net immediately if a marine mammal is entangled and follow disentanglement procedures; and

(9) If marine mammals are sighted in the sampling area during active netting, the SEFSC must raise and lower the net leadline. If marine mammals do not immediately depart the area and the animal appears to be at-risk of entanglement (e.g., interacting with or on a path towards the net), the SEFSC must delay or pull all gear immediately.

(d) Hook and line (including longline) survey mitigation. In addition to the General Conditions provided in paragraph (a) of this section, the following measures must be implemented during hook and line surveys:

(1) SEFSC must deploy hook and line gear as soon as is practicable upon arrival at the sampling station.

(2) SEFSC must initiate marine mammal observations (visual observation) no less than 30 minutes prior to gear deployment if sampling is conducted in waters greater than 200 m. If sampling in water less than 200 m, the SEFSC must initiate marine mammal observations no less than 15 minutes prior to setting gear. Observations must be conducted by scanning the surrounding waters with the naked eye and range-finding binoculars (or monocular) when longlines exceed observation distances using the naked eye. During nighttime operations, visual observation must be conducted using available vessel lighting.

(3) SEFSC must implement the move-on rule mitigation protocol, as described in paragraph (a)(7) of this section.

(4) SEFSC must maintain visual monitoring effort, where practicable, during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, SEFSC must take the most appropriate action to avoid marine mammal interaction. SEFSC may use best professional judgment in making this decision.

(5) If gear deployment or fishing has been suspended because of the presence of marine mammals, SEFSC may resume such operations when practicable only when the animals are believed to have departed the area in accordance with the move-on rule as described in paragraph (a)(7) of this section. If longline operations have been delayed because of the presence of protected species, the vessel resumes longline operations only when these species have not been sighted within 15 minutes if in less than 200 m or 30 minutes if greater than 200 m of water, or otherwise determined to no longer be at risk. SEFSC may use best professional judgment in making this decision.

(6) SEFSC must implement standard survey protocols, including maximum soak durations and limiting longline length to that necessary.

(7) For pelagic, surface longlines, gangion length must allow hooked animals to reach the surface. SEFSC must immediately reel in lines if marine mammals are deemed to be at risk of interacting with gear.

(8) SEFSC must follow existing Dolphin Friendly Fishing Tips available at http://sero.nmfs.noaa.gov/protected__resources/outreach__and__education/documents/dolphin__friendly__fishing__tips.pdf.

(9) SEFSC must not discard leftover bait overboard while actively fishing.

(10) SEFSC must inspect tackles daily to avoid unwanted line breaks.

(11) Pull gear immediately if a marine mammal is hooked and follow disentanglement procedures.

(12) Avoid using stainless steel hooks.

(13) For pelagic longline surveys in the Atlantic Ocean, follow the Pelagic Longline Take Reduction Plan and Longline Marine Mammal Handling and Release Guidelines.

(d) Electrofishing. (1) SEFSC must implement marine mammal monitoring 15 minutes prior to the onset of electrofishing (this can include approach to the survey site). If the vessel moves to another survey site, the 15 minutes observation period must be repeated.

(2) SEFSC must implement a 50-m safety zone. If a marine mammal is observed within 50 m of the vessel or on a path toward the vessel, electrofishing must be delayed. Electrofishing must not begin until the animal is outside of the 50 m safety zone or on a consistent path away from the vessel.

(3) All samples collected during electrofishing must remain on the vessel and not be discarded until all electrofishing is completed to avoid attracting protected species.

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§219.76   Requirements for monitoring and reporting.

(a) Compliance coordination. SEFSC must designate a compliance coordinator who is responsible for ensuring and documenting compliance with all requirements of any LOA issued pursuant to §§216.106 of this chapter and 219.77 and for preparing for any subsequent request(s) for incidental take authorization. All partners must report to this SEFSC-based compliance coordinator.

(b) Visual monitoring program. (1) Marine mammal visual monitoring must occur prior to deployment of trawl, net, and hook and line gear, respectively; throughout deployment of gear and active fishing of research gears (not including longline soak time); prior to retrieval of longline gear; and throughout retrieval of all research gear.

(2) When vessels are transiting, the SEFSC must maintain marine mammal observations to avoid ship strike.

(c) Training. (1) SEFSC must conduct annual training for all SEFSC and affiliate chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures, by gear and the purpose for each measure, and monitoring and reporting requirements in the LOA, mitigation and monitoring protocols, and marine mammal identification and species that the SEFSC is authorized to incidentally take. SEFSC may determine the agenda for these trainings.

(2) The training must provide detailed descriptions of reporting, data collection, and sampling protocols. This portion of the training will include instruction on how to complete new data collection forms such as the marine mammal watch log, the incidental take form (e.g., specific gear configuration and details relevant to an interaction with protected species), and forms used for species identification and biological sampling. The biological data collection and sampling training module will include the same sampling and necropsy training that is used for the Southeast Regional Observer training.

(3) SEFSC must also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful.

(4) SEFSC must coordinate with NMFS' Office of Science and Technology to ensure training and guidance related to handling procedures and data collection is consistent with other fishery science centers.

(d) Handling procedures and data collection. (1) SEFSC must implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS' Office of Protected Resources (OPR).

(2) For any marine mammal interaction involving the release of a live animal, SEFSC must collect necessary data to facilitate a serious injury determination.

(3) SEFSC must provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction.

(4) At least two persons aboard SEFSC ships and one person aboard smaller vessels, including vessels operated by partners where no SEFSC staff are present, must be trained in marine mammal handling, release, and disentanglement procedures.

(5) SEFSC must record such data on standardized forms, which will be subject to approval by OPR. SEFSC must also answer a standard series of supplemental questions regarding the details of any marine mammal interaction.

(6) For any marine mammals that are killed during fisheries research activities, when practicable, scientists will collect data and samples pursuant to Appendix D of the SEFSC DEA, “Protected Species Handling Procedures for SEFSC Fisheries Research Vessels.

(e) Reporting. (1) The SEFSC must follow protocol for reporting incidental takes:

(i) The SEFSC must notify the Southeast Marine Mammal Stranding Network (877-433-8299) immediately following the incidental take of a marine mammal. For injured/uninjured marine mammals, priority should be to release the animal before notifying the Stranding Network.

(ii) The SEFSC must report all marine mammal gear interaction to NMFS's Protected Species Incidental Take (PSIT) database within 48 hours of occurrence and must provide supplemental information to OPR and SERO upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of research survey, monitoring conducted prior to interaction, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling.

(2) The SEFSC must submit a draft annual report to NMFS OPR. The period of reporting must be annual, beginning one year post-issuance of any LOA and the report must be submitted not less than ninety days following the end of a given year.

(i) SEFSC must provide a final report within thirty days following resolution of comments on the draft report.

(ii) These reports must contain, at minimum, the following:

(A) Annual line-kilometers and locations surveyed during which the EK60, ME70, and EQ50 (or equivalent sources) operating below 200 kHz were predominant and associated pro-rated estimates of actual take;

(B) Summary information regarding use of all trawl, gillnet, and hook and line gear, including location, number of sets, hook hours, tows, etc., specific to each gear;

(C) Accounts of surveys where marine mammals were observed during sampling but no interactions occurred;

(D) All incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why and, if released alive, serious injury determinations;

(E) Summary information related to any disturbance of marine mammals and distance of closest approach;

(F) A written evaluation of the effectiveness of SEFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including gear modifications and best professional judgment and suggestions for changes to the mitigation strategies, if any;

(G) A summary of all relevant training provided by SEFSC and any coordination with NMFS Office of Science and Technology and the SERO;

(H) A summary of meeting(s) and workshop(s) outcomes with any partner working group, including, the South Carolina Department of Natural Resources, designed to reduce the number of marine mammal interactions; and

(I) A written description of any mitigation research investigation efforts and findings (e.g., lazy line modifications).

(f) Reporting of injured or dead marine mammals. (1) In the unanticipated event that the activity defined in §219.71(a) clearly causes the take of a marine mammal in a prohibited manner, SEFSC personnel engaged in the research activity must immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the SEFSC Director (or designee). The incident must be reported immediately to OPR and SERO. OPR and SERO will review the circumstances of the prohibited take and work with SEFSC to determine what measures are necessary to minimize the likelihood of further prohibited take. The immediate decision made by SEFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the information included in paragraph (f)(2) of this section.

(2) SEFSC or partner must report all injured or dead marine mammals observed during fishery research surveys that are not attributed to the specified activity to the Southeast Regional Stranding Coordinator within 24 hours. If the discovery is made by a partner, the report must also be submitted to the SEFSC Environmental Compliance Coordinator. The following information must be provided:

(i) Time, date, and location (latitude/longitude) of the incident;

(ii) Description of the incident including, but not limited to, monitoring prior to and occurring at time of incident;

(iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility);

(iv) Description of all marine mammal observations in the 24 hours preceding the incident;

(v) Species identification or description of the animal(s) involved;

(vi) Status of all sound source or gear used in the 24 hours preceding the incident;

(vii) Water depth;

(viii) Fate of the animal(s) (e.g. dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared, etc.); and

(ix) Photographs or video footage of the animal(s).

(3) In the event of a ship strike of a marine mammal by any SEFSC or partner vessel involved in the activities covered by the authorization, SEFSC or partner must immediately report the information in paragraph (f)(2) of this section, as well as the following additional information:

(i) Vessel's speed during and leading up to the incident;

(ii) Vessel's course/heading and what operations were being conducted;

(iii) Status of all sound sources in use;

(iv) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;

(v) Estimated size and length of animal that was struck; and

(vi) Description of the behavior of the marine mammal immediately preceding and following the strike.

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§219.77   Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these regulations, SEFSC must apply for and obtain an LOA.

(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.

(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SEFSC must apply for and obtain a modification of the LOA as described in §219.78.

(d) The LOA must set forth:

(1) Permissible methods of incidental taking;

(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and

(3) Requirements for monitoring and reporting.

(e) Issuance of the LOA must be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.

(f) Notice of issuance or denial of an LOA must be published in the Federal Register within 30 days of a determination.

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§219.78   Renewals and modifications of Letters of Authorization.

(a) An LOA issued under §§216.106 of this chapter and 219.77 for the activity identified in §219.71(a) must be renewed or modified upon request by the applicant, provided that:

(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and

(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.

(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.

(c) An LOA issued under §§216.106 of this chapter and 219.77 for the activity identified in §219.71(a) may be modified by OPR under the following circumstances:

(1) Adaptive management. OPR may modify or augment the existing mitigation, monitoring, or reporting measures (after consulting with SEFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

(i) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish notification of proposed LOA in the Federal Register and solicit public comment.

(ii) [Reserved]

(2) Emergencies. If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§216.106 of this chapter and 219.77, an LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.

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§§219.79-219.80   [Reserved]

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